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Ex parte White6/23/2000
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(Re: Sheryl White and John White v. Dr. James Northington and Northington Clinic, P.C.)
On November 17, 1995, John White and his wife Sheryl White filed a medical-malpractice action against Dr. James Northington and Northington Clinic, P.C., alleging that Dr. Northington had, during a surgery, removed Sheryl White's ovaries without her consent. On October 19, 1998, Dr. Northington discovered that on May 25, 1995, before they had sued him and Northington Clinic, the Whites had filed a Chapter 13 bankruptcy petition and that they had not disclosed their malpractice claim to the bankruptcy court. On the same day Dr. Northington discovered that one of the Whites' attorneys, by telephone, obtained permission from the bankruptcy court to represent the bankruptcy court's interest in the proceedings against Dr. Northington and Northington Clinic. Dr. Northington and Northington Clinic moved for a directed verdict, arguing that the Whites lacked standing to pursue the malpractice claim and that they should be judicially estopped from maintaining the malpractice action because of their failure to report the malpractice claim in their 1995 Chapter 13 bankruptcy proceedings. The trial court rejected the lack-of-standing argument, but directed a verdict for the defendants on the basis of judicial estoppel. Based on the directed verdict, the court entered a judgment for the defendants. The Whites appealed. The Court of Civil Appeals, on July 22, 1999, affirmed the judgment of the trial court, without an opinion. White v. Northington, (No. 2980399) _____ So. 2d ______ (Ala. Civ. App. 1999) (table). We granted the Whites' petition for certiorari review. We reverse and remand.
The Whites argue that they should not be judicially estopped from asserting their medical-malpractice claim against Dr. Northington and Northington Clinic, and they ask this Court to overrule, in part, Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So. 2d 917 (Ala. 1993).
On May 25, 1995, the Whites filed for bankruptcy protection under Chapter 13 of the Bankruptcy Act. Almost six months later, on November 17, 1995, the Whites filed the medical- malpractice action against Dr. Northington and Northington Clinic. The Whites did not list the medical-malpractice claim as an asset on their bankruptcy schedule of assets, nor did they later amend their bankruptcy schedule to reflect the pending malpractice lawsuit. However, the bankruptcy court was made aware of the Whites' pending action on October 19, 1998, when the Whites' attorneys spoke with the bankruptcy judge and obtained permission to continue with the malpractice action in a dual role in which the attorneys would also represent the bankruptcy court's interest in the suit.
The Whites' original payment plan provided for a 100% payback to all creditors to be completed by May 25, 2000. On September 6, 1996, the Whites moved to modify the confirmed payment plan. They sought to reduce the payment to unsecured creditors to 25%, because Sheryl White was no longer employed. The bankruptcy court granted the motion. When the bankruptcy court was asked to modify the confirmed payment plan, the Whites had not amended their schedule of assets to reflect the action against Dr. Northington and Northington Clinic. However, the bankruptcy court was notified of the existence of that action on October 19, 1998. At that time, the Whites had not been discharged by the bankruptcy court.
The Whites ask this Court to overrule Luna v. Dominion Bank, supra. However, the facts of Luna are distinguishable from the facts in the present case. In Luna, Luna filed a "lawsuit 18 months after he h
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